Opinion
S.C.I. No. 246/12, 2014-10111.
04-13-2016
The PEOPLE, etc., respondent, v. Sarah CAMARDA, appellant.
John P. Savoca, Yorktown Heights, NY, for appellant. Robert Tendy, District Attorney, Carmel, NY (David M. Bishop of counsel), for respondent.
John P. Savoca, Yorktown Heights, NY, for appellant.
Robert Tendy, District Attorney, Carmel, NY (David M. Bishop of counsel), for respondent.
L. PRISCILLA HALL, J.P., SHERI S. ROMAN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.
Opinion Appeal by the defendant from a judgment of the County Court, Putnam County (Reitz, J.), rendered April 24, 2014, convicting her of criminal possession of a controlled substance in the third degree, upon her plea of guilty, and sentencing her to a determinate term of imprisonment of 7 years, followed by a period of postrelease supervision, and a fine in the sum of $5,000.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the determinate term of imprisonment imposed from 7 years to 3 ½ years and the fine imposed from $5,000 to $1,000; as so modified, the judgment is affirmed.
The defendant contends that her plea of guilty was not knowing, voluntary, or intelligent because the County Court failed to inquire whether she had consulted with her attorney about the constitutional rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 that she was forfeiting by pleading guilty. While this issue would survive a valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Murphy, 114 A.D.3d 704, 705, 979 N.Y.S.2d 829 ; People v. Joseph, 103 A.D.3d 665, 959 N.Y.S.2d 261 ; People v. Ballinger, 12 A.D.3d 686, 687, 785 N.Y.S.2d 121 ), it is nonetheless unpreserved for appellate review, since the defendant did not move to vacate her plea prior to the imposition of sentence or otherwise raise the issue in the County Court (see People v. Sirico, 135 A.D.3d 19, 22, 18 N.Y.S.3d 430 ; People v. Isaiah S., 130 A.D.3d 1081, 13 N.Y.S.3d 840 ; People v. Bennett, 122 A.D.3d 871, 872, 996 N.Y.S.2d 369 ). In any event, since the County Court expressly advised the defendant of the Boykin rights and other constitutional rights that she was waiving by pleading guilty, and the record affirmatively demonstrates the defendant's understanding and waiver of these constitutional rights, we find that the plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Harris, 61 N.Y.2d 9, 19–20, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Sirico, 135 A.D.3d at 22, 18 N.Y.S.3d 430 ; People v. Isaiah S., 130 A.D.3d at 1082, 13 N.Y.S.3d 840 ; People v. Jackson, 114 A.D.3d 807, 807–808, 979 N.Y.S.2d 704 ).
While a defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), here, the Court is not precluded from exercising its interest of justice jurisdiction, since the defendant's purported waiver of her right to appeal was invalid. The record does not demonstrate that the defendant understood the distinction between the right to appeal and other trial rights forfeited incident to her plea of guilty (see People v. Moyett, 7 N.Y.3d 892, 893, 826 N.Y.S.2d 597, 860 N.E.2d 59 ; People v. Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Gordon, 127 A.D.3d 1230, 1231, 5 N.Y.S.3d 900 ; People v. Cantarero, 123 A.D.3d 841, 841, 996 N.Y.S.2d 724 ; People v. Ayala, 112 A.D.3d 646, 975 N.Y.S.2d 889 ). Furthermore, although the defendant executed a written appeal waiver form, there is no indication on the record that the County Court obtained an acknowledgment from the defendant that she had, in fact, signed the waiver or, if she had, she was aware of its contents or discussed it with defense counsel (see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172 ; People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Gordon, 127 A.D.3d at 1231, 5 N.Y.S.3d 900 ; People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ). Accordingly, despite the defendant's execution of a written waiver of her right to appeal, she did not knowingly, voluntarily, or intelligently waive her right to appeal (see People v. Elmer, 19 N.Y.3d at 510, 950 N.Y.S.2d 77, 973 N.E.2d 172 ; People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Callahan, 80 N.Y.2d at 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ).
The sentence imposed was excessive to the extent indicated herein (see People v. Gordon, 132 A.D.3d 904, 18 N.Y.S.3d 121 ; People v. Velasquez, 181 A.D.2d 751, 581 N.Y.S.2d 76 ; People v. Irby, 95 A.D.2d 839, 464 N.Y.S.2d 375 ; People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).